Elmsford-Interstate Building Material Corp. v. Elm Ridge Management, Inc.

243 A.D.2d 675, 664 N.Y.S.2d 576, 1997 N.Y. App. Div. LEXIS 10755

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 1997
• Status: Published

Opinion

In an action to recover on a promissory note brought by motion for summary judgment in lieu of complaint, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered January 14, 1997, which denied the motion.

Ordered that the order is reversed, on the law, with costs, the plaintiffs motion for summary judgment in lieu of complaint is granted and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate judgment.

The plaintiff met its evidentiary burden of showing entitlement to judgment as a matter of law by proving the existence of a promissory note and the defendant’s default in its payment obligations thereunder (see, Bennell Hanover Assocs. v Neilson, 215 AD2d 710; Dvoskin v Prinz, 205 AD2d 661; Mlcoch v Smith, 173 AD2d 443). In opposition, the defendant submitted a conclusory affidavit by its president alleging, without any evidentiary support, that it possessed a viable counterclaim based upon allegations that certain building materials supplied by the plaintiff were defective and that issues of fact thus existed warranting the denial of the plaintiffs motion. However, contrary to the Supreme Court’s conclusion, the bald, conclusory assertions submitted in opposition to the motion were insufficient to demonstrate the existence of genuine issues of material fact (see, Bennell Hanover Assocs. v Neilson, supra; Dvoskin v Prinz, supra; Mlcoch v Smith, supra; Northeast Small Bus. Inv. Corp. v Waccabuc Investors, 90 AD2d 538).

We have reviewed the defendant’s remaining contentions and find them to be without merit. Miller, J. P., Pizzuto, Alt-, man and Goldstein, JJ., concur.